SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of January 7,
2000, is by and among XxxxxxXxxx.xxx Inc., a Pennsylvania corporation (the
"Company"), and the Persons (as defined herein) set forth on the signature pages
hereto.
RECITALS
WHEREAS, Provident American Corporation, a Pennsylvania corporation
("Provident"), the Company, UICI, a Delaware corporation ("UICI"), and Insurdata
Incorporated, a Texas corporation ("Insurdata"), have entered into an Agreement
and Plan of Merger, dated as of December 6, 1999 (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, it is contemplated that
certain of the Holders (as hereinafter defined) will acquire shares of the
Company's common stock, no par value (the "Common Stock");
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that the parties hereto enter into this
Agreement; and
WHEREAS, the Holders and the Company wish to record their understanding
regarding certain matters relating to the management of the Company and certain
other matters.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. Definitions. In addition to the capitalized terms defined
elsewhere in this Agreement, the following capitalized terms shall have the
following meanings when used in this Agreement:
"Affiliate" with respect to a Person, means a Person that
controls, is controlled by or is under common control with such Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"Beneficial Owner" means any Person deemed to be a "beneficial
owner" of a security as defined in Rule 13d-3 under the Exchange Act. The terms
"Beneficially Own" and "Beneficial Ownership" have correlative meanings.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission (or
any other governmental body succeeding to the functions of the Securities and
Exchange Commission).
"Common Stock" has the meaning ascribed to such term in the
Recitals.
"Electing Holder" has the meaning ascribed to such term in
Section 5(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Family Group" means, with respect to any Holder who is an
individual, such Holder's spouse and descendants (whether natural or adopted)
and any trust for the benefit of the Holder and/or such Holder's spouse and/or
descendants or any Person controlled (directly or indirectly) by any such
Person.
"Fully Diluted Basis" with respect to any security, means all
of the issued shares of such security and includes, without limitation, (i) all
of the outstanding shares of such security (except shares then held by or for
the account of the issuer or its wholly owned subsidiaries), (ii) any and all
shares of such security issuable upon conversion of securities convertible into
such security, whether or not convertible at such time, and (iii) any and all
shares of such security issuable upon exercise of other exercisable rights to
acquire such security, including options, warrants and participation rights,
whether or not exercisable at such time.
"Holder" means any holder of Securities who is a party to this
Agreement (or becomes a party hereto pursuant to Section 4(d) or Section 5(d))
or who is a successor or assign or subsequent holder as contemplated by Section
18.
"New Securities" means (i) any capital stock of the Company or
any other securities or other equity obligations of the Company issued after the
date hereof, including without limitation any capital or stock appreciation,
phantom stock or profit participation rights, whether now or hereafter
authorized or not, (ii) any rights, options or warrants issued after the date
hereof to purchase any such capital stock, securities, obligations or rights, or
to purchase any securities of any type whatsoever that are, or may become,
convertible into any such capital stock, securities, obligations or rights and
(iii) any securities of any type whatsoever issued after the date hereof that
are, or may become, convertible into any such capital stock, securities,
obligations or rights; provided, however, that "New Securities" shall not
include (A) securities to be offered to the public pursuant to a registration
statement declared effective by the Commission, (B) options issued to employees,
officers, directors and consultants of the Company and the issuance of capital
stock upon exercise of such options in accordance with their terms, (C) the
issuance of capital stock in connection with the exercise of an option or a
warrant outstanding on the date hereof and issued by either the Company or
Insurdata and the issuance of warrants (and the issuance of capital stock upon
exercise thereof) issued to strategic partners of the company in the ordinary
course of business, and (D) the issuance of Common Stock in connection with an
acquisition, whether by merger, purchase of assets, or by other reorganization,
or upon conversion or exercise of options, warrants or convertible securities
issued in connection with an acquisition.
"Nominee" has the meaning ascribed to such term in Section
2(a).
"Offer" has the meaning ascribed to such term in Section 5(a).
"Offered Securities" has the meaning ascribed to such term in
Section 5(a).
"Offeror" has the meaning ascribed to such term in Section
5(a).
"Participating Holder" has the meaning ascribed to such term
in Section 4(a).
"Permitted Transferee" has the meaning ascribed to such term
in Section 4(d).
"Person" means any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability company, trust,
association or other entity.
"Sale Notice" has the meaning ascribed to such term in Section
4(b).
"Securities" means Common Stock or shares of capital stock or
other securities, directly or indirectly, exercisable for or convertible into
Common Stock; provided, however, that Securities shall not include any
securities which have been sold (i) pursuant to a registration statement
declared effective by the Commission or (ii) pursuant to Rule 144 promulgated by
the Commission under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" has the meaning ascribed to such term in
Section 4(a).
"Transfer" means a sale, transfer, disposition, gift or other
conveyance of securities.
3
SECTION 2. Board of Directors; Management of the Company.
(a) The Holders and the Company agree that the Board shall consist of
up to nine (9) members, and the Holders shall have the right to nominate a
number of persons (each such person, a "Nominee") to serve as directors on the
Board as follows: (i) UICI shall be entitled to nominate three (3) Nominees
(Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxx being the initial UICI
Nominees); (ii) Provident shall be entitled to nominate three (3) Nominees
(Xxxxxxx Xxxxxx, Xxxxx X. Xxxxxxx and Xxxxxx X. XxXxxxx, Xx. being the initial
Provident Nominees); and (iii) UICI and Provident shall together agree mutually
to nominate three (3) Nominees (with Xxxxx Xxxxx being one of the initial
Nominees agreed to by UICI and Provident). Each Holder agrees to take all
actions necessary so as to cause the Nominees to be elected to the Board
including, without limitation, the voting of its shares of stock of the Company
and causing the vote of all shares of stock of the Company Beneficially Owned by
such Holder, the execution of written consents, the calling of special meetings,
the removal of directors, the filling of vacancies on the Board, and the waiving
of notice and the attending of meetings.
(b) No party shall nominate any person to the Board if: (i) such
individual is employed by, or has investment interests, directly or indirectly,
in, any material competitor of the Company (unless such investment constitutes
less than two percent (2%) of the equity ownership in a public company and at
the time of purchase has a fair market value of less than $50,000); (ii) such
individual is not reasonably experienced in business, financial, insurance or
e-commerce industry matters; (iii) such individual has been convicted of, or has
pled nolo contendere to, a felony; (iv) the election of such individual would
violate any law; or (v) any event required to be disclosed pursuant to Item
401(f) of Regulation S-K of the Exchange Act has occurred with respect to such
individual.
(c) A director elected pursuant to this Section 2 shall serve until (i)
his or her term expires as provided in the Company's articles of incorporation
and bylaws, (ii) he or she is removed pursuant to Section (2)(d) or (iii) the
party who nominated such director no longer has the right to nominate a
director, in which case the party so elected shall immediately resign and the
size of the Board shall be decreased accordingly.
(d) In the event of the death, disability, removal or resignation of
any director designated pursuant to this Section 2, the Holder that designated
such director shall notify the Company and the other Holders, within 30 days
after such death, disability, removal or resignation, of a successor director
who shall either (i) be appointed by the remaining directors then in office to
serve the unexpired term of such director or (ii) be elected by the shareholders
pursuant to the Company's bylaws. Each Holder agrees to take all actions
necessary to elect any such successor Nominee in the same manner as discussed in
Section 2(a).
(e) The Board may create committees to assist in governing the Company,
however, no executive committee may be formed without the consent of all of the
members of the Board that are Nominees of either UICI or of Provident.
4
(f) So long as this Section 2 remains in effect, the Board nomination
rights of a Holder hereunder shall supersede any rights a Holder may have to
nominate Board members under any other agreement. After such time as a Holder is
no longer entitled under this Section 2 to nominate persons to serve on the
Board, the rights of such Holder under any such agreement to nominate Board
members shall be reinstated.
(g) The rights of any Holder under this Section 2 shall continue in
effect unless and until such Holder Beneficially Owns less than 20% of the
Common Stock of the Company on a Fully Diluted Basis.
SECTION 3. Preemptive Rights.
(a) Until the Common Stock is registered under Section 12(b) or 12(g)
of the Exchange Act, subject to the rights of AOL set forth in the securities
purchase agreement dated November 13, 1998, each of UICI and Provident shall
have the right to purchase its proportionate number, or any greater or lesser
number, of any New Securities which the Company may, from time to time, propose
to sell and issue. For purposes of this Section 3, each such Holder's
"proportionate number" means the product obtained by multiplying the number of
New Securities proposed to be sold and issued by a fraction, the numerator of
which is the number of shares of Common Stock then Beneficially Owned by such
Holder on a Fully Diluted Basis and the denominator of which is the total number
of shares of Common Stock then outstanding on a Fully Diluted Basis. This
provision shall not permit any double counting as a result of preemptive rights
contained in any other agreement or security issued by the Company.
(b) If the Company proposes to sell and issue New Securities, the
Company shall promptly give each Holder written notice of its intention, which
notice shall describe the New Securities and the price and material terms upon
which the Company proposes to issue the same, and set forth the proportionate
number of New Securities which such Holder is entitled to purchase and the
purchase price therefor. Each Holder shall have twenty days from the date of
receipt of any notice to agree to purchase its proportionate number or any
greater or lesser number of such New Securities, for the price and upon the
terms specified in the notice by giving written notice to the Company within
twenty days after the receipt of notice from the Company and stating therein the
quantity of New Securities sought to be purchased.
(c) Subject to the rights of AOL set forth in the securities purchase
agreement dated November 13, 1998, if the Holders desire to purchase a greater
number of New Securities than set forth in the Company's notice, the Company
shall have the option to increase the total number of New Securities offered or
to allocate the New Securities among those Holders exercising their purchase
rights in proportion to the number of shares of Common Stock Beneficially Owned
by each such Holder on a Fully Diluted Basis; provided, however, that no Holder
shall be allocated more shares of New Securities than it indicated a desire to
purchase with any excess being allocated among the remaining Holders in
proportion to the number of shares of Common Stock Beneficially Owned by each on
a Fully Diluted Basis and with this process to be repeated until all the New
Securities have been allocated to the Holders exercising their purchase rights.
5
(d) If the Holders fail to exercise their purchase rights within the
twenty day period with respect to all of the New Securities, the Company shall
have twenty days thereafter to sell the New Securities as to which the Holders'
rights were not exercised, at a price that is not less than the price specified
in the Company's notice. If the Company has not sold such New Securities within
such twenty day period, then the Company shall not thereafter issue or sell any
New Securities without again complying with this Section 3.
SECTION 4. Co-Sale Rights.
(a) Subject to the rights of America Online, Inc. ("AOL") set forth in
that certain Stockholders' Agreement, dated as of November 13, 1998, among the
Company, AOL, Provident, Provident Indemnity Life Insurance Company, Health Plan
Services, Inc. Xxxxxxx Xxxxxx and Xxxxx X. Xxxxxxx (the "AOL Agreement"), until
the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
in connection with a proposed Transfer of Common Stock Beneficially Owned by a
Holder (a "Selling Holder") to a Person other than a Permitted Transferee, each
Holder shall have the right, but not the obligation, to Transfer to the proposed
purchaser(s) that number of shares of Common Stock (or if such number is not an
integral number, the next integral number which is greater than such number)
which shall be the product of (i) the total number of shares of Common Stock
then Beneficially Owned by such Holder on a Fully Diluted Basis and (ii) a
fraction, the numerator of which shall be the number of shares of Common Stock
to be Transferred by the Selling Holder and the denominator of which shall be
the total number of shares of Common Stock then Beneficially Owned by all of the
Holders on a Fully Diluted Basis. The Common Stock to be Transferred hereunder
shall be Transferred on the same terms and conditions as those applicable to the
Selling Holder specified in the Sale Notice, including the time of Transfer,
form of consideration and per-share price. The failure of any Holder to exercise
its rights under this Section 4 shall result in such Holder's exclusion from the
Transfer specified in the Sale Notice. If any Holder desires to exercise its
rights under this Section 4 (each, a "Participating Holder"), such Participating
Holder shall give written notice thereof to the Selling Holder no later than ten
days after the date of the Sale Notice. Each Participating Holder shall promptly
take all steps described in the Sale Notice to effectuate the Transfer of the
Common Stock covered thereby, including without limitation the furnishing of
information customarily provided in connection with such a Transfer and the
execution of such sales and other transfer documents with such representations,
warranties, agreements, covenants and indemnities as may be required. This
provision shall not permit a Holder to duplicate any rights such holder has as a
result of co-sale rights contained in any other agreement or security issued by
the Company.
(b) If a Selling Holder proposes to Transfer any Common Stock in any
transaction or series of related transactions pursuant to Section 4(a), then at
least twenty days prior to the proposed Transfer, such Selling Holder shall
notify the Company and each Holder of such proposed transactions, which notice
(the "Sale Notice") shall specify the principle terms of such transaction,
including the number of shares of Common Stock proposed to be Transferred, the
price per share at which such Selling Holder intends to Transfer such Common
Stock and the identity of the proposed purchaser(s) as well as the other
material terms and conditions of the proposed Transfer.
6
(c) If the sum of (i) the Common Stock to be Transferred by the Selling
Holder and (ii) the Common Stock sought to be Transferred by Participating
Holders pursuant to Section 4(a) exceeds the number of shares of Common Stock
that the purchaser(s) described in the Sale Notice are willing to buy, the
Selling Holder shall adjust the number of shares of Common Stock to be
Transferred by each of the Selling Holder and each Participating Holder to
ensure that the ratio of the number of shares of Common Stock proposed to be
Transferred by each such Person to the number of shares of Common Stock
Beneficially Owned by such Person on a Fully Diluted Basis shall be equal for
each such Person, as near as may be possible.
(d) The restrictions set forth in this Section 4 shall not apply with
respect to any (i) (A) Transfer by a Holder to its heirs, devisees, Family Group
or Affiliates, (B) Transfer by UICI to any person to whom it has issued an
option to acquire any shares of Common Stock or (C) pledge of securities to a
lender to secure bona fide indebtedness or the transfer of such securities to
such lender pursuant to the terms of such pledge (each a "Permitted
Transferee"); provided, however, that each Permitted Transferee must agree to be
bound by all of the terms of this Agreement as a Holder, and (ii) Transfer by
Provident of securities issued by the Company upon conversion of securities
issued in the Provident Offering and the transferee of such securities shall not
be bound by the terms of this Agreement. For purposes of this Agreement, MEGA
Life Insurance Company and Chesapeake Life Insurance Company are Permitted
Transferees.
7
SECTION 5. Right of First Offer.
(a) Subject to the rights of AOL set forth in the AOL Agreement, until
the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
if any Holder (an "Offeror") desires to Transfer from time to time all or any
portion of the shares of Common Stock Beneficially Owned by such Holders on a
Fully Diluted Basis (all or such portion hereinafter referred to as the "Offered
Securities"), the Offeror shall, at least twenty days prior to the proposed
Transfer, furnish to the Company and each Holder a written notice setting forth
an offer to sell the Offered Securities for a specific cash dollar amount (the
"Offer"). The other Holder(s) (each, an "Electing Holder") shall have the right
to elect, by providing written notice to the Offeror of its election to purchase
within ten days after the date of the Offer, to purchase that number of Offered
Securities (or if such number is not an integral number, the next integral
number which is greater than such number) which shall be the product of (i) the
total number of shares of Common Stock then Beneficially Owned by such Electing
Holder on a Fully Diluted Basis and (ii) a fraction, the numerator of which
shall be the number of Offered Securities to be Transferred by the Offeror and
the denominator of which shall be the total number of shares of Common Stock
then Beneficially Owned by all of the Holders on a Fully Diluted Basis. This
provision shall not permit a Holder to duplicate any rights such holder has as a
result of a right of first offer contained in any other agreement or security
issued by the Company.
(b) If the Electing Holder(s) shall timely exercise their first right
to purchase all or any portion of the Offered Securities, the Offeror shall sell
all or such portion of the Offered Securities to such Electing Holder(s) who
shall pay the cash price specified in the Offer to the Offeror, and the parties
shall otherwise consummate such transaction no later than twenty days after the
Company's receipt of the Offer.
(c) If the Electing Holder(s) fails to exercise its/their first right
to purchase, or exercises its/their right only with respect to a portion of the
Offered Securities, the Offeror shall have ten days thereafter to sell any
remaining Offered Securities at the price and on terms no less favorable to the
Offeror than those specified in the Offer. If the Offeror does not consummate
the sale of such Offered Securities within such ten day period, then the Offeror
shall not thereafter Transfer any of its Securities without again complying with
this Section 5.
(d) The restrictions set forth in this Section 5 shall not apply with
respect to any (i) Transfer of Securities by a Holder to a Permitted Transferee;
provided, however, that each Permitted Transferee must agree to be bound by all
of the terms of this Agreement as a Holder, and (ii) Transfer by Provident of
securities issued by the Company upon conversion of securities issued in the
Provident Offering and the transferee of such securities shall not be bound by
the terms of this Agreement.
(e) The restrictions set forth in this Section 5 shall be subject to
the prior exercise by AOL of its rights set forth in the AOL Agreement.
8
SECTION 6. Legend. The Company shall stamp or imprint each certificate
or other instrument representing Securities held by a Holder bound by any terms
of this Agreement, throughout the term of this Agreement, with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON VOTING AND
TRANSFER, SET FORTH IN A SHAREHOLDERS' AGREEMENT DATED AS OF JANUARY 7,
2000, AS IT MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED FROM
TIME TO TIME, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICE OF
THE COMPANY."
SECTION 7. Approval Rights. In addition to all other rights set forth
in this Agreement, UICI shall, in its sole and absolute discretion, have the
right to approve, alter or prevent (i) the calculation of the amount and the
amortization period of all goodwill and other intangibles recorded by the
Company in connection with the Merger, provided such calculation shall be
consistent with generally accepted accounting principles and approved by the
Company's independent auditors and (ii) the entering into by the Company of a
merger, consolidation, reorganization or similar transaction with Provident or
any Provident subsidiary, provided that the rights in this clause (ii) shall
expire at such time as UICI shall Beneficially Own less than 20% of the Common
Stock of the Company on a Fully Diluted Basis.
SECTION 8. Transfer Option.
(a) Transfer Option. Subject to the terms and conditions in this
Section 8, the Company shall have the right (the "Transfer Option") to cause
UICI to transfer to one or more third parties unaffiliated with UICI, up to
1,255,000 shares (representing 6% of UICI's Beneficial Ownership of Common Stock
on a Fully Diluted Basis) of Common Stock owned by UICI at a per share price
equal to the greater of (i) $21.00 and (ii) the Closing Price (as hereinafter
defined). The Transfer Option shall be exercisable one time only with respect to
all such shares of Common Stock and may be exercised at any time following the
completion of the Follow-On Equity Offering and ending on the first to occur of
the following events: (i) on the third anniversary of the date hereof; (ii) the
ninetieth (90th) day following the date on which the Closing Price (as
hereinafter defined) of shares of Common Stock shall have been at least $27.00
per for a period of sixty (60) consecutive trading days; and (iii) the ninetieth
(90th) day following the first date on which UICI Beneficially Owns less than
40% of the shares of Common Stock on a Fully Diluted Basis. For purposes hereof,
"Closing Price" shall mean the reported last sale price of a share of Common
Stock, on a given day, regular way, or, in case no such sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
each case on the New York Stock Exchange Composite Tape, or, if the security is
not listed or admitted to trading on such exchange, on the American Stock
Exchange Composite Tape, or, if the security is not listed or admitted to
trading on such exchange, the principal national securities exchange on which
the security is listed or admitted to trading, or, if the security is not listed
or admitted to trading on any national securities exchange, the closing sales
price, or, if there is no closing sales price, the average of the closing bid
and asked prices, in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or, if not so
reported, as reported by the National Quotation Bureau, Incorporated, or any
successor thereof, or, if not so reported, the average of the closing bid and
asked prices as furnished by any member of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose or, if no such prices are furnished, the fair market value of the Common
Stock as determined in good faith by the board of directors of the Company,
which determination shall be based upon recent issuances or current offerings
pursuant to bona fide private offerings of the same class of security by the
Company; provided, however, that any determination of the "Closing Price" of any
security hereunder shall be based on the assumption that such security is freely
transferable without registration under the Securities Act.
9
(b) Exercise of Transfer Option. The Company may exercise its rights
under Section 8(a) by giving UICI written notice of its exercise of the Transfer
Option prior to the expiration of the Transfer Option. Such notice shall state
that the Company intends to cause UICI to transfer such shares to one or more
third parties unaffiliated with UICI. Upon the closing of the transactions
contemplated by an exercise of the Transfer Option, UICI shall surrender its
shares of Common Stock, duly endorsed for transfer, to the Company or the
Persons purchasing such securities, in exchange for the net proceeds from such
transfer. The closing of the transactions upon the exercise of the Transfer
Option shall occur within ninety (90) days of the exercise thereof by the
Company.
(c) Transfer to Third Parties. Any exercise by the Company of its
Transfer Option in which the Company elects to cause UICI to transfer shares of
Common Stock to one or more Persons unaffiliated with UICI shall be governed by
the following terms:
(i) Private Placement. Prior to the time that the shares of
Common Stock are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, the Company will, upon any exercise of the Transfer
Option in accordance with this Section 8(c), as expeditiously as
possible:
(A) prepare a private placement memorandum, together
with such amendments and supplements thereto as may be
necessary to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all shares of
Common Stock covered by such private placement memorandum;
(B) use its reasonable efforts to perfect exemptions
for the shares of Common Stock covered by such private
placement memorandum under all applicable rules and
regulations of the Commission and such other securities or
blue sky laws of such jurisdictions as UICI shall request, and
do any and all other acts and things reasonably requested by
UICI to permit UICI to consummate the sale or other
disposition in such jurisdictions of such shares, except that
the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein
any general consent to service of process;
10
(C) enter into and perform its obligations under a
private placement agency agreement, in usual and customary
form, with a placement agent acceptable to UICI, including,
without limitation, to obtain an opinion of counsel to the
Company in the usual and customary form for such private
placement; and
(D) notify UICI, at any time when a private placement
memorandum is required to be delivered under the applicable
law, of the happening of any event of which it has knowledge
as a result of which the private placement memorandum, as then
in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(ii) Public Offering. After the time that the shares of Common
Stock are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, the Company, upon the exercise of the Transfer Option in
accordance with this Section 8(c), may elect to cause the transfer of
shares in a private placement, in which case the provisions of Section
8(b)(i) shall apply, or may elect to cause the shares to be sold in a
public offering, in which case the Company shall as expeditiously as
possible:
(A) prepare and file with the Commission a
registration statement with respect to such shares of Common
Stock and use its reasonable efforts to cause such
registration statement to become effective and remain
effective for as long as shall be necessary to complete the
distribution of the shares of Common Stock so registered;
(B) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by
such registration statement;
(C) furnish to UICI and any underwriters such numbers
of copies of a summary prospectus or other prospectus,
including a preliminary prospectus or any amendment or
supplement to any prospectus, in conformity with the
requirements of the Securities Act, and such other documents,
as UICI or the underwriters may reasonably request in order to
facilitate the public sale or other disposition of the
securities covered by such registration statement;
11
(C) use its reasonable efforts to register and
qualify the Common Stock covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as UICI or the underwriters shall request, and
do any and all other acts and things reasonably requested by
UICI or the underwriters to assist them to consummate the
public sale or other disposition in such jurisdictions of the
Common Stock covered by the registration statement, except
that the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein
any general consent to service of process;
(D) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the
period of at least twelve months, beginning with the first
fiscal quarter beginning after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act;
(E) use its reasonable efforts to list such Common
Stock on any securities exchange or interdealer quotation
system on which any shares of the Company are then listed, if
the listing or quotation of such securities is then permitted
under the rules of such exchange or interdealer quotation
system;
(F) enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter or underwriters selected by UICI of such
underwritten offering, including, without limitation, to
obtain an opinion of counsel to the Company and a "comfort
letter" from the independent public accountants to the Company
in the usual and customary form for such underwritten
offering;
(G) notify the Investors, at any time when a
prospectus relating thereto covered by such registration
statement is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in such
registration statement, as then in effect, contains an untrue
statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing;
(H) make the Company's executive officers available
to participate in "road show" presentations for such periods
and in such places as the underwriters may reasonably request
and make the Company's executive officers available at the
Company's principal executive offices to discuss the affairs
of the Company at times that may be mutually and reasonably
agreed upon; and
12
(I) upon the request of UICI, take any and all other
actions which may be reasonably necessary to complete the
registration and thereafter to complete the distribution of
the Common Stock so registered.
(iii) Expenses. All expenses of any offering pursuant to a
Transfer Option under this Section 8 shall be borne by the Company,
except that UICI shall bear the cost of a reasonable customary
underwriting commission or discount, brokerage commission or placement
fee in the event of a successful offering.
SECTION 9. Termination. If any Holder shall be in default of its
obligations hereunder and any such default shall continue for a period of 30
days after any other Holder or the Company has given written notice thereof to
such defaulting Holder, then the rights (but not the obligations) under this
Agreement of such defaulting party shall terminate. This Agreement shall
terminate upon the written agreement of each of the parties hereto.
SECTION 10. Beneficial Ownership. Each of the Holders Beneficially Own
that number of shares of Common Stock on a Fully Diluted Basis set forth
opposite their respective names on Exhibit A hereto. Each Holder shall promptly
hereafter notify the Company of any changes to its respective Beneficial
Ownership of Common Stock. The Company shall be entitled to rely upon the
amounts set forth in Exhibit A or such notices without incurring any liability
to any other party hereunder. Each Holder shall respond promptly to any request
made by the Company to provide or confirm such Holder's Beneficial Ownership of
Common Stock.
SECTION 11. Acknowledgments. Each of the parties hereto acknowledges
that the restrictions, prohibitions and other provisions hereof are reasonable,
fair and equitable in scope, terms and duration, are necessary to protect the
legitimate business interests of each of the other parties hereto, and are a
material inducement to such party to enter into the transactions contemplated by
this Agreement.
SECTION 12. Expenses. Except as otherwise specifically provided in this
Agreement, each party hereto shall bear its own costs and expenses with respect
to the transactions contemplated hereby.
SECTION 13. Remedies. Each of the parties to this Agreement shall be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of competent jurisdiction for specific performance or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available by law, in equity or otherwise.
13
SECTION 14. Notices. Any notice, request, instruction or other document
to be given hereunder shall be in writing and shall be deemed to have been given
(a) when received if given in person or by courier or a courier service, (b) on
the date of transmission if sent by facsimile or other wire transmission or (c)
three business days after being deposited in the U.S. mail, certified or
registered mail, postage prepaid, addressed as specified with respect to such
Holder in Exhibit A or to such other individual or address as a party hereto may
designate for itself by notice given as herein provided.
SECTION 15. Amendments and Waivers. The provisions of this Agreement
may be amended or waived only upon the written agreement of each of the parties
hereto; provided, however, that amendments to Sections 2, 3, 7 and 8 may be made
upon the written agreement of both UICI and Provident and no other party. Any
waiver, permit, consent or approval of any kind or character of any provision or
condition of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in writing. Any amendment or waiver
effected in accordance with this Section 15 shall be binding upon the Company
and each Holder of Securities.
SECTION 16. Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
and each transferee of all or any portion of the Securities held by the parties
hereto, whether so expressed or not. Each Permitted Transferee of all or any
portion of the Securities held by any of the parties hereto shall execute and
deliver a written assumption agreement to the Company agreeing to be bound by
the provisions of this Agreement, in form and substance reasonably acceptable to
the Company. Notwithstanding the foregoing, except as specifically provided in
this Agreement, no assignment of any rights or obligations under this Agreement
may be made by any party.
SECTION 17. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, and the remainder of this
Agreement shall remain operative and in full force and effect. The parties shall
negotiate in good faith a replacement clause or provision as consistent with the
ineffective clause or provision as is practicable under law.
SECTION 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 19. Entire Understanding. This Agreement (together with the
letter agreement of even date herewith between Provident, HealthAxis and UICI)
sets forth the entire agreement and understanding of the parties hereto with
respect to the matters set forth herein and supersedes any and all prior
agreements, arrangements and understandings among the parties.
14
SECTION 20. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument. Transmission by facsimile of an executed counterpart of this
Agreement shall constitute due and sufficient delivery of this Agreement.
SECTION 21. Interpretation. The headings preceding the Sections
included in this Agreement and the headings to Exhibits and Schedules attached
to this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation",
respectively. Underscored references to Sections or Schedules shall refer to
those portions of this Agreement.
SECTION 22. No Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and no provision of this Agreement shall be
deemed to confer upon other third parties any remedy, claim, liability,
reimbursement, cause of action or other right.
SECTION 23. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 24. No Presumption Against Drafter. Each of the parties hereto
has jointly participated in the negotiation and drafting of this Agreement. In
the event of any ambiguity or a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by each of the parties
hereto and no presumptions or burdens of proof shall arise favoring any party by
virtue of the authorship of any of the provisions of this Agreement.
[Remainder of page intentionally left blank]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
XXXXXXXXXX.XXX, INC.
By: ___________________________________
Name:_________________________________
Title:__________________________________
UICI
By: ___________________________________
Name:_________________________________
Title:__________________________________
PROVIDENT AMERICAN CORPORATION
By: ___________________________________
Name:_________________________________
Title:__________________________________
--------------------------------------
Xxxxxxx Xxxxxx
EXHIBIT A
Common Stock on a Fully Diluted Basis
-----------------------------------------------------------------------------------------------------------------------
Number of Shares
of Common Stock Percentage of Shares of
Name and Beneficially Owned Common Stock Outstanding
Notice Address on a Fully Diluted Basis on a Fully Diluted Basis
-----------------------------------------------------------------------------------------------------------------------
UICI 19,967,729 39.9%
0000 XxXxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
With a copy to:
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
N/A N/A
-----------------------------------------------------------------------------------------------------------------------
XxxxxxXxxx.xxx, Inc.
0000 XxXxxx Xxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
and CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Blank Rome Xxxxxxx & XxXxxxxx
LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Provident American Corporation 15,801,644 31.5%
0000 XxXxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 1,191,000 2.4%
c/o XxxxxxXxxx.xxx, Inc.
0000 XxXxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxxx
c/o XxxxxxXxxx.xxx, Inc.
0000 XxXxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
